Kick-started by the #MeToo movement, the prevention of sexual harassment in the workplace has been a priority for particular sectors and industries, employers more generally and the political parties. As a result, we have seen a cultural shift in the way in which allegations of sexual harassment are viewed and handled by employers, with a move to responding to allegations in a much more proactive and robust manner. Although progress has undoubtedly been made, the government (and indeed any future Labour government) acknowledges that there is still work to do. Statistics would seem to back this up, with the Fawcett Society reporting earlier this year that 40% of women experience sexual harassment in the workplace.
To encourage employers to be more proactive in their efforts to reduce workplace sexual harassment, the government has recently passed The Worker Protection (Amendment of Equality Act) Act 2023. This Act introduces a new obligation on employers to take ‘reasonable steps’ to prevent sexual harassment of their employees (as defined by the Equality Act 2010) in the course of their employment. The Act will come into force in October 2024. In this update, we look at the new duty and what employers can do to prepare for its introduction. Although the new duty is not in force until October, employers will want to act now to make sure they are ready.
What is changing?
The principle that employers should take ‘reasonable steps’ to prevent harassment already exists in UK anti-discrimination law. Where a person commits an act of discrimination (including harassment) in the course of their employment, their employer is ordinarily liable for that act, in the event a claim is brought, unless the employer can show that it took ‘all reasonable steps’ to prevent the discrimination from arising. The defence is rarely successful in practice as ‘all reasonable steps’ is a high bar, and many employers find it difficult to demonstrate that they have taken all such steps.
Whilst the ‘all reasonable steps’ defence will remain, the Act introduces a new, positive obligation, which will require employers to put reasonable steps in place proactively to prevent sexual harassment of employees from arising in the first place in the course of their employment. Employers facing an allegation of sexual harassment will need to demonstrate the targeted measures they have implemented to comply with this positive duty to protect employees from sexual harassment. Unlike the ‘all reasonable steps’ defence, the new duty is limited to preventing sexual harassment only so does not apply to other types of discrimination or harassment.
What are the consequences of non-compliance?
Under the new Act, if an employee succeeds in a claim for sexual harassment, an Employment Tribunal will be required to consider whether the employer breached its duty to take reasonable steps to prevent sexual harassment and whether to uplift any award of compensation by up to 25%. The uplift will apply to any compensation that is awarded for the unlawful harassment, so could result in a substantial increase. The potential for the Employment Tribunal to apply a percentage uplift to an award already applies to claims where an employer has unreasonably failed to follow the Acas Code on Disciplinary and Grievance Procedures. However, the maximum percentage uplift (also 25%) is only awarded in exceptional cases. It remains to be seen whether the Employment Tribunal will take a different approach to the uplift in sexual harassment claims.
Separately, and importantly, the Equality and Human Rights Commission (EHRC) will have powers to enforce the duty and so will be able to take enforcement action against organisations which are in breach of the new duty.
How can employers prepare for the new duty?
Many employers will already have processes in place to prevent sexual harassment (and harassment more generally) in the workplace. When the new duty comes into force in October, all employers will need to be able to show that they have reasonable steps in place to combat sexual harassment. Having a programme in place which is adhered to, and against which the organisation is measured, will make this much easier to demonstrate. Even if you already have measures in place, it is worth auditing and reviewing those measures to check that they will be fit for purpose once the new duty takes effect.
Although the duty does not come into force until October 2024, it is sensible to start to address what you need to do to comply now to make sure your house in order. Depending on what is required, the steps needed may not be overnight fixes and will take time to bed in.
Steps to consider
Updated EHRC guidance is expected in due course but there are already a range of resources to which employers can refer when considering what steps are likely to be reasonable and appropriate for them when it comes to preventing sexual harassment.
It is important to remember that what is reasonable will vary from employer to employer, depending on the size and nature of the organisation, the resources available, and the risk factors which need to be addressed (both within the organisation and sector). The options we outline below will not be appropriate for all organisations, and some might only be suitable or feasible for larger employers.
1: Foster an inclusive culture
Prevention is always better than cure, and fostering an inclusive culture is the best preventative measure an employer can take. Creating (and maintaining) a climate of respect and inclusion within the workplace, with a clear zero-tolerance approach to harassment, is crucial to combatting the risk of unacceptable conduct. There are lots of different ways to achieve cultural change or to further embed cultural practices. Here are some suggestions:
- Visible senior level buy-in is key to success. Clear commitment from the top of the organisation to creating and maintaining a respectful workplace culture, which demonstrates a zero-tolerance approach to harassment (including sexual harassment) will be important.
- Communications on changes or updates to your policies (see below) should come from your senior leaders to demonstrate this. Reverse-mentoring schemes involving senior leaders offer another effective way of demonstrating buy-in as well as providing valuable learnings.
- Ensure that existing policies (including recruitment processes) covering harassment and sexual harassment are effective, easy to access and regularly reviewed. Encourage staff to be involved in developing policies by seeking input from representatives from different parts of the organisation and varying levels of seniority (or, if there is a recognised trade union, or employee-led networks, asking existing representatives from those bodies to participate).
- An excellent communications plan to support your approach. Ensure that your stance against harassment is visible to your staff - whether virtually or in the ‘real-life’ workplace. Physical signage and hard copy communications may have their place alongside blogs and updates on your Intranet (or equivalent).
- Ensure your induction programme for new recruits clearly sets out and reinforces your expectations in terms of culture and behaviour.
- Run regular training for all staff on what constitutes harassment (including sexual harassment) and emphasise your zero-tolerance stance on such conduct. Refresh and roll out this training on a regular basis. Training can go further to include sessions on the use of inclusive language, for example.
- Many organisations have now established employee inclusion networks which can be a very effective and demonstrable way of supporting a healthy workplace culture.
2: Effective complaints handling processes
To create a culture which is visibly and credibly anti-harassment, all complaints of harassment should be handled and investigated appropriately. It is important that staff understand how to raise complaints, and crucially that they trust that their complaint will be listened to and dealt with empathetically:
- Put in place a clear reporting process for sexual harassment (and other forms of harassment). Your people should understand how to raise a complaint (which doesn’t need to involve or be against them – it can be poor behaviour they have witnessed) and how any complaint will be dealt with and by whom. Staff confidence in the process is key. To encourage a ‘speak-up’ culture, some organisations offer the opportunity to report via an App which can make reporting easier and less intimidating.
- Make sure that staff feel they can raise issues outside of a formal reporting process – manager catch-ups, return to work meetings, and exit interviews may offer such opportunities. Ensure any red flags are investigated appropriately – individuals may sometimes feel reluctant to raise an issue formally, but it is important that they have an appropriate space to share their concerns. Equally not all complaints will need to be resolved through a formal process – there may be instances where less formal routes for resolution might work better and these should be explored where appropriate.
- Provide training for those with responsibility for implementing policies and dealing with complaints (including managers, newly promoted managers and HR), so that they understand what to do when they receive a report or allegation, how an investigation will be carried out, and how they can support staff. The training should also identify red flags to look out for and investigate. Training should be regularly refreshed.
- Have specially trained staff or, where appropriate, external agencies, who are available to support colleagues who have experienced harassment and offer this support to staff who make a complaint. Similar support should also be available for staff who have been the subject of a complaint whilst the investigation process is in progress.
- Respond quickly to any complaints and ensure that lessons are learned where an issue is identified.
Even where an organisation has created a respectful and inclusive workplace and there are clear processes in place for dealing with any complaints, there are still risk factors. Often issues can arise in situations or circumstances where organisations have little control, for example during work social events (particularly if alcohol is involved), or on unofficial WhatsApp groups. Take steps to mitigate the risks associated with these situations and circumstances – for example, ahead of parties and celebrations, remind people of the organisation’s expectations on behaviour and encourage staff that they should feel comfortable to report any concerns at an early stage.
3: Monitor and evaluate progress
It is sensible both culturally and with an eye to demonstrating adherence to the new duty to ensure that the measures you put in place are monitored and reviewed, on a regular basis, to demonstrate effectiveness and ongoing compliance with the duty to take reasonable steps. For example:
- For monitoring to be effective you will need to understand the current culture within your organisation. Carry out an audit to establish where your organisation is currently ‘at’. How many live complaints do you have at any one time and what are the nature of those complaints? Are there any trends you can identify – for example do certain names come up on repeat or are certain departments or teams consistently being flagged? Does data from your exit interviews reveal any cause for concern? Check out your organisation’s reviews on the various recruitment platforms - do they ring alarm bells? What is the market perception of your organisation?
- Test the temperature of the workplace. Consider an anonymous staff survey which may reveal issues which need to be addressed.
- Update risk assessments to identify any gaps and risk areas.
- Consider the availability of new technology to improve reporting and monitoring.
- Re-test the workplace temperature regularly to make sure you are improving (or at least not getting worse!)
- Finally keep records of what you are doing – if you are ever called upon to demonstrate the steps you have taken, by either the Employment Tribunal or the EHRC, you will be in a much better position to do this if you can point to a thought-out plan and programme which is adhered to and regularly reviewed.
Wider benefits
While the above suggestions are focused on preventing sexual harassment in line with the new duty, any steps you introduce will contribute to fostering a more inclusive workplace environment. An organisation’s approach to diversity and inclusion is increasingly important in helping employers attract and retain the best talent, and enabling that talent to thrive.
A more inclusive workplace should also reduce the risk of other allegations of discrimination, by ensuring that the workplace provides equal access to opportunities and resources for all, that there are no practices or policies which might exclude certain groups and that staff are clear on the way in which they are expected to treat others with whom they work.
Further change to come?
If there is a change in government, it is possible that Labour would revisit the Worker Protection Act and the new duty. For example, they may look to extend the duty to include an obligation on employers to take ‘all reasonable steps’ to prevent sexual harassment as well as introducing a separate obligation to prevent third-party harassment (for example, to cover harassment by customers and clients with whom staff may interact in the course of their employment). Both these points were originally included in the draft legislation before being later removed during Parliamentary debate. Labour’s Green Paper ‘A New Deal for Working People’, published in September 2022, specifically committed to tackling workplace harassment by requiring employers to ‘create and maintain workplaces and working conditions free from harassment, including by third parties.’ and last year Angela Rayner and Anneliese Dodds both committed to introducing a standalone legal duty requiring employers to take all reasonable steps to prevent sexual harassment, as well as to protect workers from harassment from third parties.
Organisations including the Fawcett Society have already expressed disappointment that this government has not gone further in this new Act and have pushed for greater protection against third-party harassment. Preventing third-party harassment would be much more difficult for employers, as it brings with it tricky practical issues. We will be watching with interest for any developments in this area.
Further information
The EHRC is the regulator in this area. They published technical guidance on sexual harassment and harassment at work in 2020 which sets out in detail (at chapter 5) the steps that organisations can take to prevent and respond to harassment. This guidance provides that employers can weigh the effectiveness of any step against factors including the time, cost and potential disruption that might be caused. The EHRC has already said that they will be releasing updated technical guidance that takes the new duty into account, following a full consultation. The updated guidance will set out steps that employers should take to comply with the law. The EHRC also released a guide for employers, again in 2020, on preventing sexual harassment at work. This includes a detailed seven step plan of steps employers can take to ensure that they are doing all they can to prevent and deal with workplace sexual harassment. The technical guidance and employers’ guide are both likely to be relevant to compliance with the new Act, so you may want to read them to identify any gaps or issues in your current approach.
Other helpful guidance (which may also be updated in advance of the new Act coming into force) is available:
How we can help
We have extensive experience of advising organisations on equality issues including in relation to lawful positive action which some employers are starting to explore. If you would like more information on the above, or specific advice please contact Katie Russell or another member of our Employment Team.
This update was co-authored by Katie Russell and Rebecca Mullins.
Disclaimer
This briefing gives general information only and is not intended to be an exhaustive statement of the law. Although we have taken care over the information, you should not rely on it as legal advice. We do not accept any liability to anyone who does rely on its content.